Action 8 of the BEPS Action Plan (“Assure that transfer pricing outcomes are in line with value creation: Intangibles”) identifies that work needs to be undertaken to develop “transfer pricing rules or special measures for transfer of hard-to-value intangibles”. This discussion draft sets out an approach to hard-to-value intangibles and proposes revisions to the guidance in Section D.3 of the 2014 BEPS Report “Guidance on Transfer Pricing Aspects of Intangibles”. The revised guidance explains the difficulties faced by tax administrations in verifying the arm’s length basis on which pricing was determined by taxpayers for transactions involving a specific category of intangibles. The Discussion Draft also proposes an approach based on the determination of the arm’s length pricing arrangements, including any contingent pricing arrangements, that would have been made between independent enterprises at the time of the transaction. This approach is applied when specific conditions are met and it is intended to protect tax administrations against the negative effects of information asymmetry.

Interested parties are invited to submit written comments by 18 June 2015 (no extension will be granted) and should be sent by email to TransferPricing@oecd.org in Word format. They should be addressed to Andrew Hickman, Head of Transfer Pricing Unit, Centre for Tax Policy and Administration. Comments in excess of ten pages should attach an executive summary limited to two pages.

Please note that all comments received regarding this Discussion Draft will be made publicly available. Comments submitted in the name of a collective “grouping” or “coalition”, or by any person submitting comments on behalf of another person or group of persons, should identify all enterprises or individuals who are members of that collective, or the person(s) on whose behalf the commentator(s) are acting.

Public Consultation

A public consultation on the Discussion Draft and other topics will be held on 6-7 July 2015 at the OECD Conference Centre in Paris. Speakers and other participants at the public consultation will be selected from among those providing timely written comments on the Discussion Draft. Details on how to attend the public consultation are available on line: